Court Information
Ontario Court of Justice
Date: April 18, 2016
Court File No.: DFO 06-1166-00-A2
Parties
Between:
Euridice Correa Applicant
— AND —
Jan Demke Respondent
Before: Justice E. B. Murray
Heard on: April 1, 2016
Reasons for Judgment released on: April 18, 2016
Representation:
- Ms. Correa: on her own behalf
- Mr. Demke: on his own behalf
Judgment
Murray, E. B. J.:
Introduction
[1] This is my decision on the Respondent Father's motion to change the consent order of October 27, 2008, which provided that he pay $601 monthly for support of the child E., born […], 1999, and $867 monthly for support of the child's mother, the Applicant, Ms. Correa. The Respondent asks that his obligation to pay child support be terminated, based on his assertion that E. is no longer in her mother's care. He asks that his obligation to pay spousal support also be terminated because he has paid spousal support for "almost 13 years, which is sufficient time enough to fix financial or personal issues".
[2] The Applicant opposes the motion. She says that the child does now and has always lived with her. She asks that child support be increased, in keeping with the increase in the Respondent's income. The Applicant, who is 57 years of age, initially opposed a termination of the spousal support order, asserting that her loss of career opportunities resulting from her responsibilities as a single parent permanently depressed her ability to earn income. When she was advised by me of the provisions of the Spousal Support Advisory Guidelines, she later revised her position, asking that spousal support continue for the maximum duration suggested in the Guidelines.
[3] Both parties in this case are self-represented. They filed affidavits and sworn financial statements.
Child Support
[4] I am satisfied that E. continues to live with the Applicant and that the Applicant continues to be entitled to receive support payments for her.
[5] The Respondent has had little or no contact with E. for some years. E. says that contact stopped in 2012. The Respondent says that it was a "year or two" ago. In any event, the Respondent has no direct knowledge of the child. He says, however, that police contacted him recently, expressing concern that E. was "caught among homeless street youth at McDonald's restaurant at Yonge and Wellesley."
[6] E. herself wrote a letter confirming that she lives with the Applicant. The Applicant acknowledges that the child has suffered from concerning mental health problems. The Applicant has obtained support for E. at Hospital for Sick Children and CAMH. She arranged for the child to be enrolled in a full-time program of education through Central Toronto Youth Services.
[7] As I am satisfied that the child resides with the Applicant, there is no basis to terminate child support. Based on the Respondent's 2015 income of $84,876, I order that he pay support in a table amount of $761 monthly, commencing May 1, 2016.
[8] Pursuant to Section 31 of the Family Law Act, the Respondent has an obligation to provide support for E. until she reaches the age of majority (18 years), and, after the child reaches the age of 18, as long as she is enrolled in a full-time programme of education. After E. reaches the age of 18 years, the Applicant shall provide the Respondent with confirmation in writing that the child is enrolled in such a program by September 15th of each year.
[9] Generally (but not always), the obligation to contribute to support of an adult child attending a post-secondary educational programme ends when the child obtains her first post-secondary degree. If the parties are unable to agree as to an appropriate termination date for child support in the future, either party may apply to the court to have the issue determined.
The Facts Material to the Claim to Vary Spousal Support
[10] The evidence establishes the following:
The parties cohabited for 4 years, from 1998 to 2002. They were not married. They lived in their jointly-owned home in Toronto.
They separated in August 2002 when E. was 3 years old.
When they began cohabiting, the Respondent had a job in IT and the Applicant was a graduate student, pursuing a master's degree with the help of a bursary. It is agreed that the Respondent was the primary financial provider for the family. The Applicant says that she was primarily responsible for the care of the child during the relationship; that is disputed by the Respondent.
The Respondent left the family home at the time of separation. He maintained contact with the child, usually on Thursdays.
After separation the Applicant withdrew from her graduate programme; she says that the responsibilities and pressure of being a single parent were such that she could not continue to pursue her studies.
After separation the Respondent paid the mortgage on the home, with some contribution from the Applicant. He also paid nursery school fees for E. He made no support payments to the Applicant.
After separation, the Applicant obtained some employment, working part time as a translator, as a receptionist, and as a school crossing guard.
By 2006, the Applicant was unable to manage financially. She applied for social assistance payments, and then applied to the court for child and spousal support.
The Respondent did not defend the action, and an order was made on May 31, 2007 providing that the Respondent pay child support of $719 monthly and spousal support of $1,293 monthly.
Subsequently the Respondent applied to have the order set aside or for a variation, saying that he had not defended because he did not believe he would be ordered to make spousal support payments. That action resulted in the consent order that is the subject of the current motion, which provides that he pay child support of $601 monthly and spousal support of $867 monthly.
At the time of the October 27, 2008 order, the Applicant's income was $10,836 annually (excluding support payments received and child tax benefits).
At the time of the October 27, 2008 order, the Respondent swore that his projected income for the year was $65,000; that figure is reflected in the order. The Respondent's actual income for that year, as shown in his Notice of Assessment, was $91,929.
The SSAG were not argued by counsel at the time of the October 27, 2008 order.
Sometime after the May 31, 2007 order, the Respondent bought out the Applicant's interest in the family home for $75,000.
In February 2010, the Respondent brought a motion requesting termination of spousal support and a decrease of child support, alleging a decrease in income because of a lay off from his work. He stopped paying child and spousal support in August 2010. His motion to suspend payment of support was dismissed on December 21, 2010.
Based on the Respondent's failure to make adequate financial disclosure and his failure to comply with the support order, the Applicant moved to have his pleadings struck. He was given time to comply, but ultimately the court struck his pleadings on May 14, 2012, and his motion was dismissed.
After the October 27, 2008 order, the Applicant continued to piece together income from various part-time jobs. She volunteered with community groups, in hope of this leading to full time employment, and took a workshop to train as a community advocate.
The Applicant now has a full-time position with the Federation of Metro Tenants Associations, earning $35,000 annually. She has no significant assets, and debts of approximately $25,000. Her financial statement indicates that she lives within her income (including the support received), with a small deficit of $230 monthly.
The Respondent's annual income is $84,876. He has married, and apparently transferred ½ his interest in the former family home to his wife. Although this is not in evidence, he advises that his wife does not work outside the home, that they have a 5 year old child, and that there is a child older than E. in the home, apparently his wife's child from a prior marriage.
The Respondent estimates his net worth at $110,150. His financial statement shows debt of $71,850; it is unclear how much of this represents the mortgage on his home. The Respondent's financial statement indicates that he is spending far in excess of his income, showing a deficit of $1,888 monthly.
The Applicant is now 57 years of age; the Respondent is 47 years of age.
Law as to Variation of Spousal Support
[11] Section 37 of the Family Law Act provides that a court may change a spousal support order if there has been a material change of circumstances relevant to support, a change since the date of the original order. Once the change is established, then the court may review all the evidence to determine what change, if any, is appropriate. In determining the appropriate order, the court should take both the purposes of a spousal support order and the factors relevant to duration and amount set out in the Act into consideration.
[12] The Spousal Support Advisory Guidelines (SSAG) were drafted in 2008. The Guidelines are not law, but have been accepted as a useful litmus test of the range of appropriate amounts and durations for spousal support in all provinces except Quebec. The Ontario Court of Appeal has held that, if the Guidelines are referenced by the parties in argument, that it is an error in principle for the court not to give them consideration. Use of the Guidelines on straightforward variation motions, such as this case appears to be, has been approved by the courts.
[13] Courts have held that on a motion to change or terminate spousal support, it is important to understand the basis for the support order. Support may be ordered for three reasons: to compensate for damage to a party's ability to earn income because of the role played during the marriage or the loss resulting from the separation (compensatory); to meet financial need (non-compensatory or needs-based); or pursuant to the terms of an agreement (contractual). Even if a spouse's need at the time of a variation motion is not as great as at the time of the initial support order, a continuing compensatory claim may justify a continuation of spousal support.
Analysis: Spousal Support Variation
[14] The Respondent has established that there has been a material change in circumstances—an increase in the Applicant's income—that warrants consideration of his motion to change. The Applicant's annual income is now $35,000, a substantial increase from her 2008 income of $10,836.
[15] Should a change be made in the order? If so, what is the appropriate change?
[16] The Respondent, citing the short duration of the relationship and the SSAG, says that the order should terminate now, and that, in fact, it should have terminated long ago.
[17] The authors of the SSAG addressed this point of view in their 2008 report:
Where there are dependent children, the primary rationale for spousal support is compensatory……
Length of marriage alone no longer provides a measure of the duration of the spousal support obligation, as the case law increasingly demonstrates, even if some spouses think it should. …..Critical to understanding these durational issues is the compensatory rationale for spousal support in these shorter marriage cases. Most of the economic disadvantage in these cases is not in the past, but in the future; it is the continuing disadvantage that flows from the obligations of child care and their impact upon the ability of the recipient parent to obtain and maintain employment. Hence the importance of the age of the children (at separation) in fashioning durational limits.
[18] In the 2010 Updated User's Guide to the SSAG, the authors said that: "four basic points need reiteration":
The initial order under this formula should be "indefinite (duration not specified)". Any time limits should only be applied through the process of variation and review.
The with child support formula is fundamentally compensatory, which means that most time limits should fall towards the higher end of the range, not the lower end.
In shorter marriages, the basis for compensation is not just the past disadvantage flowing from the spouse's disproportionate assumption of child-rearing responsibilities (relatively short), but primarily the continuing disadvantages that flow from the spouse's ongoing and future responsibilities for child-rearing.
In shorter marriages with younger children, then, the length of the marriage is a very poor indicator of the depth of the recipient spouse's disadvantage.
[19] As the parties were self-represented, I prepared a SSAG calculation, using the Respondent's current income of $84,867 and the Applicant's current income of $35,000, with information as to the child's age (3) and the Respondent's age at separation (43). The results of the calculation show support payable in a range of $355 monthly to $1,040 monthly (with a mid-range of $715 monthly), for a minimum of 3 years and a maximum of 16 years from the date of separation. I provided a copy of these SSAG calculations to the parties for review and comment.
[20] I do not find that this is an extreme case that would justify an order going beyond the maximum duration set out by the SSAG. There are, however, three factors in this case which support a continuation of spousal support payments to the maximum duration:
It is clear from the evidence that the Applicant is still in need of spousal support.
The Applicant also has a significant compensatory claim. Although the evidence is not clear as to whether the Applicant was primarily responsible for E. during the relationship, she was primarily, almost solely, responsible for the child after the separation, and has continued to carry that responsibility for the past 13 years. Although the Applicant was able to avail herself of workshop training as a community advocate, she was unable to return to her academic career. The Respondent has had little or no contact with the child during what have proved to be difficult teenage years. This means that the stress and the work of obtaining appropriate help for E. and providing her with support and guidance has fallen on the Applicant alone. Given the Applicant's age, there is little prospect of her significantly improving her ability to earn income.
Although court-ordered support payments are now up to date, the prolonged period during which support was not paid in a timely fashion put a strain on the Applicant which was counter-productive to her efforts to improve her ability to earn income.
[21] I have considered the Respondent's expenses for his second family. Those expenses are the reason why I did not make an order above the mid-range of the SSAG, which might have been justified given the factors set out above. The Respondent should note that an order in the mid-range of $715 monthly is a decrease in the spousal support payments now being made.
[22] If the Respondent is carrying the substantial monthly deficit he shows on his financial statement, it might behoove his family to consider having his wife return to work. His evidence does not address why his wife is not contributing to household income.
[23] I also note that courts have generally held that first family support obligations take priority to second family support obligations.
[24] In the circumstances, the appropriate order is one that provides that the Respondent pay support to the Applicant in the amount of $715 monthly, commencing May 1, 2016 and continuing up to and including the payment of August 1, 2018.
Released: April 18, 2016
Signed: Justice E. B. Murray
Footnotes
[1] As set out in her financial statement sworn October 9, 2008
[2] Last year she was able to earn $41,665 from this employment, however, her employer explained that loss of funding for her position this year has led to a reduction in salary.
[3] From his 2015 T4. Prior year was somewhat higher.
[4] S. 33 (8) and (9) of the Act.
[5] Fisher v. Fisher, 2008 ONCA 11
[6] "Spousal Support Advisory Guidelines: A New and Improved User's Guide to the Final Version", March 2010. Chapter 13 (a); Bockhold v. Bockhold, 2010 BCSC 214.
[7] Or for her contribution to the other spouse's career or business prospects
[8] Dowdling v. Dowdling, 2008 NSCA 27
[9] The Respondent prepared SSAG calculations showing an incorrect annual income for himself ($70,000) with the Applicant's as $35,000, and indicating payments ranging from $0 to $495 monthly, for a maximum duration of 4 years. It was apparent that this calculation could not be correct, given the very young age of the child at the time of separation and the resulting time required to complete secondary school. I advised the Respondent of this.
[10] E.g., cases of illness or disability, addressed in Ch. FV 12.4 of the 2010 Updated User's Guide to the SSAG
[11] Annual Review of Family Law, 2012, James McLeod and Alfred Mamo, Carswell, p. 626.